3-D Printing: New Dimensions for Canadian IP Law

Last year Canada (finally) responded to the changes wrought by the internet and amended the Copyright Act to address, among other things, the creation, reproduction and dissemination of works in a digital environment. The Supreme Court of Canada has also recently re-emphasized the need to interpret the law in a technologically neutral manner. These developments, however, may still not be enough to prepare us for the new wave of digital reproduction technology that is coming with 3-D printing. As was the case with other digital reproduction technologies, 3-D printing technology is now moving from very expensive devices predominantly in the hands of corporate owners, to increasingly inexpensive technology on the verge of becoming popularized among ordinary consumers. This shift is similar to those which we have already seen with respect to personal and mobile computing.

Three-dimensional objects of widely varying complexity can now be printed using this technology using a variety of materials. A recent news story has even reported on the potential for this technology to print organs for transplant. The printers are evolving to use a wide range of materials that go well beyond the initial plastics and polymers.

Three-dimensional printing is likely to present some significant challenges for intellectual property regimes. This is certainly the thrust of a recent article on the subject in the World Intellectual Property Review (WIPR). Unlike 2-D printing, which is predominantly useful in reproducing works protected by copyright, 3-D printing affects copyright, patent, industrial design and trademark law. We are not far from a future where individuals widely use online file sharing networks to widely distribute plans that will allow for the reproduction of all manner of 3-D objects, including utilitarian objects, replacement parts, jewellery, toys, guns, uniquely configured, eye-catching products, miniatures and action figures based on copyright protected characters from books or movies.

Canada’s IP laws – like those of other countries – may not be fully ready to deal with the challenges posed by affordable and accessible 3-D printing. In the first place, the reproduction of 3-D objects may implicate one or more IP statutes. Three-dimensional objects that are artistic in nature are often protected by copyright law; the drawings or plans for the making of three-dimensional objects may also be protected as artistic works under copyright law. The visual appearance and design features of utilitarian objects can be protected through industrial design registration. Three-dimensional features of objects may, if they are distinctive of their trade source, be protected as trademarks. Functional 3-D items may also be protected under patent law. Clearly, there is IP protection available for 3-D items, but it is highly fragmented which will likely make it harder for individuals and companies to understand the parameters of legal activity. Further, while copyright law has been substantially revised to deal with the challenges posed by easy digital reproduction and the online dissemination of works, the other regimes have not received attention in this regard. Much has also been done to address the different ways in which copyright law may be infringed online – this includes a number of important new defences to copyright infringement that seek to create balance, along with an adjustment of statutory damages available where copying is non-commercial in nature. The other IP laws in Canada are not well adapted to copying by private individuals for non-commercial purposes. Three-dimensional printing may thus bring with it a paradigm shift which will no doubt create tensions between IP owners and users that may ultimately have to be addressed by the legislature. Yet we are still grappling with old-tech IP reform. For example, a new IP Bill C-56, currently before Parliament, addresses counterfeiting under both the trademark and copyright regimes, but the focus of these amendments is on the movement of goods across borders, and on enhancing the available measures to stop the importation of infringing works. Just as the law is moving towards addressing the flow of counterfeit goods across the border, counterfeiting may soon shift to digitally networked 3-D printers, the online dissemination of plans and designs, and small scale reproduction of works by multiple and widely dispersed individuals.